Judgement 1693380378

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Arbitration O.P.No.

11 of 2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 06.07.2023

PRONOUNCED ON : 18.08.2023

CORAM:

THE HONOURABLE MS.JUSTICE R.N.MANJULA

Arbitration O.P.No.11 of 2022

M/s.Image Infotainment Limited,


Represented by its Managing Director,
K.Kumar,
Having its registered Office at
Bo.61/32, TTK Road, Alwarpet,
Chennai - 600 018. ... Petitioner
versus

M/s.Labour India Public School and Junior College,


Represented by its Managing Director,
Labour India Knowledge City,
Labour India Hills,
Mangattupuly P.O.,
Kottayam District,
Kerala - 686 635. ... Respondent

PRAYER: Arbitration Original Petition filed under Section 34(2) of the


Arbitration and Conciliation Act, 1996, prays to set aside the award passed
by the sole arbitrator, Chennai dated 02.02.2022 in the Arbitration Case
No.A.C.P (CNICA) No.2 of 2019.
For Petitioner : Mr.K.Subbu Ranga Bharathy

For Respondent : Mr.Benoj C.Augustin

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ORDER
This Arbitration Original Petition has been filed seeking to set aside

the award passed by the learned Arbitrator, Chennai dated 02.02.2022 in the

Arbitration Case No.A.C.P (CNICA) No.2 of 2019.

2. Heard the learned counsels for the petitioner and respondent

and perused the materials available on record.

Petition in brief:-

3. The petitioner and the respondent have signed a Memorandum

of Understanding on 01.06.2017 in connection with a project of the

respondent’s school; the agreement was for six years; as per the

Memorandum of Understanding, 500 students would be admitted into the

programme on a fee of Rs.5,000/- each; however a dispute arose between

the petitioner and the respondent with regard to the payments; since the

Memorandum of Understanding contained an arbitration clause, a sole

Arbitrator was appointed; during the arbitration proceedings, the respondent

had filed an Application in I.A.No.1 of 2019 and challenged that the

Memorandum of Understanding that it is insufficiently stamped; the then

learned Arbitrator dismissed the application and proceeded with the

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arbitration; the said order was not challenged by the respondent; the

Memorandum of Understanding has been marked as Ex.C.1; however the

subsequent Arbitrator had concluded that the substantive agreement is

inadmissible in law due to deficit stamping and held that the respondent is

liable to pay a sum of Rs.8,16,666/- to the claimant with interest at the rate

of 9% per annum from 15.02.2018.

3.1. The learned Arbitrator without considering the materials placed

by the petitioner had chosen to reject the claim in view of the deficit fee;

aggrieved by the said award, the petitioner had filed this Arbitration

Original Petition to set aside the award dated 02.02.2022 made in

Arbitration Case No.A.C.P (CNICA) No.2 of 2019 in entirety.

Submissions of the petitioner:-

4. The learned counsel for the petitioner submitted that the award

of the learned sole Arbitrator is erroneous, contrary to law and facts. The

award was passed without application of mind and evaluating the evidence

in right perspective. The arbitration clause is independent to that of

Memorandum of Understanding; the Memorandum of Understanding ought

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not to have been rejected on the allegation of deficit stamp duty; the very

same question was raised by the respondent before the earlier Arbitrator by

way of filing an Application in I.A.No.1 of 2019 and the same was

dismissed and the order of dismissal was not challenged so far.

4.1. Even if the Memorandum of Understanding is insufficiently

stamped, the learned Arbitrator ought to have directed the petitioner to

produce the original Memorandum of Understanding and directed the

petitioner to pay the necessary stamp duty by invoking Sections 34 and

35(b) of the Indian Stamps Act, 1899 and penalty could have been levied

under Section 38 of the Indian Stamp Act. Without giving an opportunity to

resolve the stamp duty issue, the Memorandum of Understanding should

not have been rejected. Since the arbitral award passed by the learned

Arbitrator is erroneous on the face of it, it is liable to be set aside.

Submissions of the respondent:-

5. The learned counsel for the respondent submitted that the

award does not fall within any of the exceptions contemplated under Section

34 of the Arbitration Act for getting it set aside. An arbitral award cannot

be set aside merely on the ground of erroneous application of law or

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misappreciation of evidence. The petitioner had filed the claim application

seeking compensation of an amount for the services provided to the

respondent. Since a dispute had arisen, it was referred to mediation. Even

though the Memorandum of Understanding dated 25.02.2017 was not

properly stamped, in view of the independent nature of the arbitration

clause, the learned Arbitrator has decided to proceed with the proceedings.

The learned Arbitrator has correctly found that the Memorandum of

Understanding was not properly stamped and that it cannot be treated as

contract as per Section 2(g) of the Indian Contract Act.

5.1. In support of his submissions, the learned counsel for the

respondent relied on the decision of the Constitutional Bench of the Hon’ble

Supreme Court held in N.N.Global Mercantile Private Ltd. vs. Indo Unique Flame

Ltd. and others reported in 2023 SCC Online SC 495. In the said judgment, it is

held that if the agreement is not duly stamped, its terms and conditions

cannot be enforced and it is not admissible in law. The said position of law

has been followed in various judgments of the Hon'ble Supreme Court and

various High Courts.

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5.2. As per Section 35 of the Indian Stamp Act, if the instrument is

insufficiently stamped it is inadmissible in evidence. Further the Tamil

Nadu Stamp Rules 3(iii) states that the “stamps purchased in Tamil Nadu

State shall alone be used for instruments chargeable with duty under the

Act as in force in that State”. The agreement was executed in Chennai in on

insufficiently stamped instrument, bearing the stamp of State of Kerala and

it is invalid as per Tamil Nadu Stamp Rules.

5.3. The petitioner had approached the Court under Section 34 of

the Arbitration and Conciliation Act 1996 to set aside the arbitral award and

that itself is not maintainable. The arbitral award cannot be set aside except

if there is any patent illegality or perversity. The learned Arbitrator has

considered and passed the award by giving proper reasons and hence this

petition should be dismissed.

Discussion:-

6. The sole ground to challenge the award is the rejection of the

Memorandum of Understanding by stating the reason of insufficient

stamping. Irrespective of the issue of stamp duty, the learned Arbitrator had

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continued the proceedings by considering that the arbitral clause itself in a

separate agreement in itself.

7. The Memorandum of Understanding entered into between the

petitioner and the respondent dated 25.02.2017 has been marked as Ex.C.1.

Even though the learned Arbitrator had chosen to rely on the decision of the

Hon'ble Supreme Court held in Jupudi Kesava Rao vs. Pulavarthi Venkata

Subbarao reported in AIR 1970 SC 1070 on the point of inadmissibility of the

insufficiently stamped document, the document has been admitted and

marked as an exhibit during the course of the Arbitration Proceedings.

8. As per Section 33 of the Indian Stamp Act, 1899, if any

instrument is found to have been not duly stamped, the authorities specified

in the above provision, shall impound the same and collect duty. Section 33

of the Indian Stamp Act reads as under:-

“Sec.33.Examination and impounding of instruments.-


(1)[(a)] Every person having by law or consent of
parties, authority to receive evidence, and every person in
charge of a public office, except an officer of police, before
whom any instrument, chargeable, in his opinion, with duty, is

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produced or comes in the performance of his functions, shall if


it appears to him that such instrument is not duly stamped,
impound the same.
[(b) Notwithstanding anything contained in section 31,
but without prejudice to the provisions of clause (a), the
Collector before whom any instrument is brought under
section 31 for determining the duty with which the instrument
is chargeable, shall, if it appears to him that such instrument is
not duly stamped, impound the same :
Provided that nothing contained in this clause shall be
deemed to authorise the Collector to impound any instrument
which has not been executed but is brought to him under
section 31 for determining the duty with which the instrument
is chargeable or any instrument which he is authorised to
endorse under section 32]

(2) For the purpose, every such person shall examine


every instrument so chargeable and so produced or coming
before him, in order to ascertain whether it is stamped with a
stamp of the value and description required by the law in force

in India when such instrument was executed or first executed:


Provided that-
(a) nothing herein contained shall be deemed to require
any Magistrate or Judge of a Criminal Court to examine or
impound, if he does not think fit so to do, any instrument

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coming before him in the course of any proceeding other than


a proceeding under Chapter XII or Chapter XXXVI of the Code
of Criminal Procedure, 1898 (Act V of 1898);
(b) in the case of a Judge of a High Court, the duty of
examining and impounding any instrument under this section
may be delegated to such officer as the Court appoints in this
behalf.
(3) For the purposes of this section, in cases of doubt,-

(a) the State Government may determine what offices


shall be deemed to be public offices; and

(b) the State Government may determine who shall be


deemed to be persons in charge of public offices.”

9. As per Section 35 of the Indian Stamp Act, no instrument

chargeable with duty shall be admissible in evidence, unless it is impounded

in accordance with Section 33 and an endorsement to that effect has been

made under Section 42(2) of the Act. However, as per Section 36, if an

instrument has been admitted in evidence, such admission shall not be

called in question at any stage of the proceedings on the ground that the

instrument has not been duly stamped, except as per the procedure

contemplated under Section 61 of the Indian Stamp Act. And Section 36

reads as under:-

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“Sec. 36 Admission of instrument where not to be questioned


-Where an instrument has been admitted in evidence, such
admission shall not, except as provided in section 61, be called
in question at any stage of the same suit or proceeding on the
ground that the instrument has not duly stamped.”

10. Section 61 says about the revisional powers of the Appellate

Courts in the matters of imposition of duty on the insufficiently stamped

instruments either on its own motion or on the application made by the

collector. If an insufficiently stamped document is admitted in evidence its

admissibility shall not be questioned except by the Appellate Court as stated

under Section 61. For the sake of clarity Section 61 is extracted as under:-

“ Sec.61 Revision of certain decisions of Courts regarding


the sufficiency of stamps-
(1) When any Court in the exercise of its civil or revenue
jurisdiction of any Criminal Court in any proceeding under
Chapter XII or Chapter XXXVI of the Code of Criminal
Procedure, 1898 (5 of 1898), makes any order admitting any
instrument in evidence as duly stamped or as not requiring a
stamp, or upon payment of duty and a penalty under section
35, the Court to which appeals lie from, or references are
made by, such first-mentioned Court may, of its own motion or

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on the application of the Collector, take such order into


consideration.
(2) If such Court, after such consideration, is of opinion
that such instrument should not have been admitted in
evidence without the payment of duty and penalty under
section 35, or without the payment of a higher duty and penalty
than those paid, it may record a declaration to that effect, and
determine the amount of duty with which such instrument is
chargeable, and may require any person in whose possession
or power such instrument then is, to produce the same, and
may impound the same when produced.

(3) When any declaration has been recorded under sub-


section (2), the Court recording the same shall send a copy
thereof to the Collector, and, where the instrument to which it
relates has been impounded or is otherwise in the possession
of such Court, shall also send him such instrument.
(4) The Collector may thereupon, notwithstanding
anything contained in the order admitting such instrument in
evidence, or in any certificate granted under section 42, or in
section 43, prosecute any person for any offence against the
Stamp-law which the Collector considers him to have
committed in respect of such instrument:
Provided that-
(a) no such prosecution shall be instituted where the
amount (including duty and penalty) which, according to the

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determination of such Court, was payable in respect of the


instrument under section 35, is paid to the Collector, unless he
thinks that the offence was committed with an intention of
evading payment of the proper duty;

(b) except for the purposes of such prosecution, no


declaration made under this section shall effect the validity of
any order admitting any instrument in evidence, or of any
certificate granted under section 42.”

11. Before proceeding to the special facts behind the admission of

the document in question in this case, it is relevant to extract the special

paragraphs of the judgment in Jupudi Kesava Rao vs. Pulavarthi Venkata

Subbarao reported in AIR 1970 SC 1070 on the impact of insufficient stamping.

“The first limb of Section 35 clearly shuts out from


evidence any instrument chargeable with duty unless it is duly
stamped. The second limb of it which relates to acting upon the
instrument will obviously shut out any secondary evidence of
such instrument, for allowing such evidence to be let in when
the original admittedly chargeable with duty was not stamped
or insufficiently stamped, would be tantamount to the
document being acted upon by the person having by law or
authority to receive evidence. Proviso (a) is only applicable
when the original instrument is actually before the Court of

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law and the deficiency in stamp with penalty is paid by the


party seeking to rely upon the document. Clearly secondary
evidence either by way of oral evidence of the contents of the
unstamped document or the copy of it covered by Section 63 of
the Indian Evidence Act would not fulfil the requirements of
the proviso which enjoins upon the authority to receive nothing
in evidence except the instrument itself.”

12. The learned Arbitrator has relied the above judgement, despite

allowing the copy of the Memorandum of Understanding marked. The copy

of the Memorandum is only a secondary evidence. The import of the above

content is that if the instrument is not duly stamped it has to be impounded

and that can be done only on the original instrument; hence there is no

question of receiving secondary evidence during the proceedings. In other

words, if secondary evidence of insufficiently stamped instrument is

received, it would amount to approving the insufficiently stamped

instrument itself by waiving the obligation to pay the deficit stamp duty

along with penalty.

13. During the arbitration proceedings, the learned Arbitrator had

chosen to receive and mark the copy of the Memorandum of Understanding

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as a document. Having known that it is not the original document and

received it in evidence, later the learned Arbitrator has chosen not to

consider the same for want of sufficient stamp duty. Further, the learned

Arbitrator has made a cautious observation in his order about the

petitioner’s disentitlement to get the benefit under Section 36 of the Indian

Stamp Act, by stating that what was in evidence is only a copy of the

Memorandum of Understanding and not the original Memorandum of

Understanding. It is reiterated that as per Section 36 of the Stamp Act once

an instrument is admitted in evidence, it shall not be questioned later that it

is insufficiently stamped.

14. As per Section 35 only an original document can be impounded

and not a copy. It is obviously because Xerox copy of the document would

only contain an image of the stamp and for the image of a stamp no value

can be attached. It is similar to the difference between an original currency

note and a Xerox copy of the currency. While the original currency note has

an exchangeable value, the Xerox copy of the currency can be considered as

nothing but a piece of paper.

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15. Only in view of the above reason, the Hon’ble Supreme Court

has held in Jupudi Kesava Rao that unless the original document is impounded

its copy can not be received as a secondary evidence. In fact the Court went

to an extent further and observed that receiving the secondary evidence of

an insufficiently stamped document would tantamount to acting up on the

improperly stamped original document itself, without the payment of duty

or penalty.

16. Hence, the learned Arbitrator ought not to have allowed the

petitioner to mark the copy of the Memorandum of the insufficiently

stamped Agreement. As per the legal position held in Jupudi Kesava Rao,

allowing a Xerox copy of the insufficiently stamped Memorandum of

Understanding to be admitted in evidence would indirectly amount to

ratifying the insufficiently stamped document, without payment of duty or

penalty.

17. Having admitted a copy and marked the same as an exhibit and

thereby waiving the process of impounding and collection of duty, the

learned Arbitrator had denied the petitioners to get the benefits of Section

36 of the Stamp Act. In this regard it is relevant to refer the judgement of

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the Hon’ble Supreme Court held in N.N.Global Mercantile Private Ltd. vs. Indo

Unique Flame Ltd. and others reported in 2023 SCC Online SC 495. In the said

judgement it is held as under;

67. We may also profitably refer to paragraph-8 as well


: (Hindustan Steel Ltd. Vs. Dilip Construction Co., reported
in (1969)1 SCC 59, SCC p.601)
8. Our attention was invited to the statement of law by
M.C. Desai, J., in Mst Bittan Bibi v. Kuntu Lal [ILR (1952) 2
All 984] : (ILR p.1000)
“…A court is prohibited from admitting an
instrument in evidence and a court and a public
officer both are prohibited from acting upon it.
Thus a court is prohibited from both admitting it
in evidence and acting upon it. It follows that the
acting upon is not included in the admission and
that a document can be admitted in evidence but
not be acted upon. Of course it cannot be acted
upon without its being admitted, but it can be
admitted and yet be not acted upon. If every
document, upon admission, became
automatically liable to be acted upon, the
provision in Section 35 that an instrument
chargeable with duty but not duly stamped, shall
not be acted upon by the Court, would be
rendered redundant by the provision that it shall

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not be admitted in evidence for any purpose. To


act upon an instrument is to give effect to it or to
enforce it.”
In our judgment, the learned Judge attributed to Section
36 a meaning which the legislature did not intend. Attention of
the learned Judge was apparently not invited to Section 42(2)
of the Act which expressly renders an instrument, when
certified by endorsement that proper duty and penalty have
been levied in respect thereof, capable of being acted upon as
if it had been duly stamped.
68. We draw the following conclusions, as to what has
been laid down by a Bench of three learned Judges in
Hindustan Steel Ltd. Vs. Dilip Construction Co., reported in
(1969)1 SCC 597:
68.1. The Stamp Act is a fiscal measure intended to raise
revenue;
68.2. The stringent provisions of the Act are meant to
protect the interest of the Revenue;
68.3. It is not intended to be used as a weapon by a
litigant to defeat the cause of the opponent;
68.4. Upon the endorsement being made under Section
42(2) of the Stamp Act, the 63 document would be admissible
in evidence and can be acted upon.
69. We may only observe that the Court did not take into
consideration Section 17 of the Stamp Act, which provides for

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the precise time, at which, the instrument is to be stamped.


Equally, the Court did not bear in mind that Section 62 of the
Stamp Act, penalises transgression of Section 17, inter alia.
Still further, the Court was dealing with an instrument after it
was impounded, and the payments made which were certified
under Section 42(2).
70. It is true that an unstamped instrument is
compulsorily impoundable under Section 33 of the Stamp Act.
The procedure to be followed thereafter is also provided in the
Act. After the procedure is followed and the duty and the
penalty is paid, the instrument would come to be visited with
the endorsement under Section 42(2). Thereafter, it becomes
enforceable and it can be acted upon, as held in Hindustan
Steel (supra).

18. In the above judgment the Hon’ble Supreme Court has

expressed its disapproval to the view of the Allahabad High Court in Mst

Bittan Bib. The Allahabad High Court has observed in the above judgment

that even if a document is admitted, there is no compulsion to act upon it.

It is asserted by the Hon’ble Supreme Court that the above view of the

Allahabad High Court in Mst Bittan Bibi v. Kuntu Lal, is not the object of

Section 36 of the Indian Stamp Act.

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19. So, the natural corollary would be once a document is admitted

in evidence by accepting the stamp on it, its evidentiary value cannot be

overlooked without appreciation. To make it more specific, Section 36 can

not be understood in a manner that if a stamped document is admitted, the

courts can refrain from acting upon it. Though Section 36 only implies the

acceptance of a document after paying the impounded duty and getting the

seal of approval under Section 42(2) of the Stamp Act, it doesn’t state

anything explicitly about the impact of passing the document without

impounding and marking it in evidence. In other words, Section 36 does

not state in any explicit terms that those documents admitted and marked in

contravention to Section 35 shall not be considered during the course of

appreciation of evidence.

20. The above aspect needs a little more elaboration by visualizing

a situation where an improper impounding has been taken place as an

insufficiently stamped document resulting in collecting of less duty than the

actual due. Even in that case, it has be presumed that the impoundment and

collection of duty within the meaning of Sections 33 and 35 of the Act has

been completed. In view of Section 36, even an improper impounding can

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not be questioned except following the procedure contemplated under

Section 61. So the possibilities of insufficiency still might continue in a few

cases but safeguarded due to the special procedure contemplated under

Section 61 of the Stamp Act.

21. Similar is a case where the insufficiently stamped instrument is

admitted by the authority concerned without following the due procedure

and then marking it as evidence. Once such a document is marked as an

evidence, it passes from the stage of admission to relevance. Once an

evidence is allowed as relevant during the arbitration proceedings, the

learned Arbitrator can not refrain from analyzing and appreciating its

evidentiary value for a given dispute.

22. In the case on hand, the learned Arbitrator has admitted the

copy of the Memorandum of Understanding. Admitting such kind of

secondary evidence tantamounts to acting on the insufficiently stamped

document itself. Once an act starts, its sequence can not be averted. But the

learned Arbitrator has not relied the terms of the contract even though the

copy of the Memorandum of Understanding is marked as a document.

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23. Deciding a dispute between the parties without considering the

terms of contract between them is like constructing a building without

foundation. Since the said process is in conflict with the basic notion of

rendering justice, I feel the petitioner has made out a ground under Section

34 of the Arbitration and Conciliation Act and consequently the award is

liable to be set aside.

24. However, the omission to impound the insufficiently stamped

but admitted document has to be necessarily taken cognizance by this Court,

which has the revisional power under Section 61 of the Stamp Act. Though

there is no order of impoundment made by the learned Arbitrator under

Section 33 of the Stamp Act, this Court is empowered to revise the act of

the omission to impounding, on the part of the learned Arbitrator, by

causing the production of the original. Since the stamps on instruments

represent the fiscal value of the public revenue, failure to collect duty by

impounding an insufficiently stamped document can not be condoned. The

petitioner himself has submitted that the learned Arbitrator ought to have

called for the original Memorandum of Understanding and impounded it

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instead of not appreciating the evidentiary value of the marked copy of the

same. (Ex.C1).

25. Hence the petitioner is directed to produce the original of the

Memorandum of Understanding for impoundment to this Registry within 2

weeks. On such production of the original Memorandum of Understanding

the Registry shall impound and collect the stamp duty before issuing a

certified copy of this order to the petitioner. Since the stamp on the

instrument is said to be the Stamp of Kerala, the rest of the stamp duty

cannot be collected in terms of stamp of TamilNadu. Hence the registry is

directed to proceed with the process of impoundment as though the

instrument is wholly unstamped and collect the whole duty in terms of

stamp of Tamil Nadu and then make due endorsement. After such

impoundment, the Registry shall attach the original Memorandum of

Understanding along with a copy which has been already marked as Ex.C1.

In the result, the petition in Arbitration O.P.No.11 of 2022 is allowed

and the award dated 02.02.2022 passed by the learned sole Arbitrator,

Chennai in Arbitration Case No.A.C.P (CNICA) No.2 of 2019 is set aside

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and the matter is remitted back to the same Arbitrator to reappraise the

materials including the terms of Memorandum of Understanding and

dispose it afresh, on the condition that the petitioner shall produce the

original Memorandum of Understanding for the purpose of impounding as

directed supra. Failure to produce the original as directed and get it

impounded for paying the duty, will deprive the petitioner from getting the

benefit of this order and in such case the Petition will be dismissed. Hence

the matter has to be listed for compliance after 4 weeks.

18.08.2023
Speaking order
Index : Yes
Neutral Citation : Yes

sri

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R.N.MANJULA, J.

sri

Pre-Delivery Order made in


Arbitration O.P.No.11 of 2022

18.08.2023

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